This article attempts to analyze the legal sanctity of marital rape, its prevalence in India, and its shortcomings in the legal system of the country.
Introduction
Rape. One horrifying word that leaves people astounded and pity the victims of rape. It exposes the failure of the society to integrate and function effectually and maintain social stability. Institutions that are established to give security and safety to these individuals are unable to perform their obligations and thereby this debacle leads to sexual violence and sexual assault. A person loses his/her right to privacy and individuality after such grievous hurt and attack. The law of the country either provides legitimacy of such crimes by law or does not take into account the legitimacy of such situations.
- Sources: Critical Edges
Marriage in India has been considered a sacrament, where two people, who are united together in this ceremony are to be with one another in sickness, health, and every obstacle of life. However, what happens when the person is supposed to pass difficulties of life, itself become the impediment to life? This is where marital rape comes into the scenario. Rape within a marriage is a global crime that is being committed for years now and very few countries have actually taken it into their purview and considered it as an offense. The catastrophic effects of rape by strangers or ex-partners, on its victims, is prevalent and a known fact. However, it is argued that rape within marriage has equivalently dreadful effects on its victims. India is a patriarchal society where the institution of marriage is considered to be holy. Due to this sacramental value given to marriage, any action taken within a marriage is overlooked and not held liable for.
Lawmakers have successfully taken flight from their responsibilities to protect women, which includes married women from their own husbands. These legislators are under the belief that rape within marriage is not a crime as consent to marriage is consent to sexual intercourse at any point in life, even if the wife resists. The regressive culture of our society is evident from cases where marital rape is considered as an individual case, a personal cause, and not a public cause. The Indian Penal Code considers offenses like cruelty by husband or relatives, assault, sexual harassment, etc. against a woman’s body to be criminalized. However, when the same sexual act is performed within four walls, against the wishes of the wise, then such a situation is to be regarded as a right of a husband who is seeking pleasure and duty of the wife to let him commit that crime on her, without resisting it.
Women consider their bodies unsafe most of the time and are unable to protect their bodily integrity against sexual violence. Rape is an exacerbated act of sexual violence that is paid no heed to if it is done by a husband on his wife. Hence, one can define marital rape as an offense where the woman does not consent to the sexual acts.
History
Liberty of women over their body
- Source: rediff.com
In the time of the British era, India was one of the many countries that were racing towards feminism and many social workers laid the core of empowering females. This feminist movement led to the enactment of various legislations that supported and justified the cause of women who were victims of certain grievous offenses. Legislations like Dowry Prohibition Act 1961, National Commission for Women Act 1990, The Protection Of Women From Domestic Violence Act 2005, and The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013. These enactments were passed to safeguard women’s rights and legal entitlements. It was further reinforced when the government of India declared 2001 as the year of women’s empowerment[1].
Although these laws have been enforced, women in India today are still dispossessed of their own rights on their bodies. They are coerced to have non-consensual sexual intercourse with their husbands and if they resist, their resentment is met with verbal threats, physical violence, and fatal consequences. As seen under section 375 of the Indian Penal Code that forced intercourse and non-consensual sex is punishable by law, the same section imposes an exception on a married woman above 18 years of age whose husband can force her to have sex with him even if it’s non-consensual.
The legislators believe that a forceful act by the husband is not a crime and this has not been recognized as an offense by policy enforcers. With changing times, marriage has become a partnership between two equal people and thus, the wife is seen as evenly matched to the husband in terms of gender discrimination. In the case of Joseph Shine v. Union[2] of India, it was held that “A woman has an equal right to privacy as a man. The autonomy of an individual is the ability to make decisions on vital matters of life.”
Despite such landmark judgments, India is still to a large extent gripped in its age-old notions.
Legal developments protecting women’s rights in marriage
Section 375 of the Indian Penal Code states, “Exception 2. Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
Section 375 of The Indian Penal Code explicitly excludes marital rape as an offense against women above the age of 18 years. This is not only a violation of Article 14 of the constitution which promises equal rights to all citizens but it also violates Article 15(1) of the constitution that prohibits any kind of discrimination on grounds of religion, race, caste, sex, or place of birth. The need for legislation that does not draw a line between consent on sexual intercourse is important so that women can protect themselves from this torture. “The marital or other intimate relationship should not be considered as a mitigating factor for inflicting lower punishments in heinous offenses such as rape”[3].
Landmark Cases
The European Commission for Human Rights in C.R. v. the United Kingdom
The European Commission for Human Rights in C.R. v. the United Kingdom also affirmed that “a rapist remains a rapist regardless of his relationship with the victim[4].” A bench of Justice, C Hari Shankar and former Acting Chief Justice, Gita Mittal of Delhi High Court on marital rape held that “marriage does not mean that the woman is all time ready, willing and consenting for sex. The man will have to prove that she was a consenting party.”[5]
In today’s Indian Legal system, it can be vividly seen that husbands are given the freedom to commit a violent offense with their wives, with no punishment given to them. Although the legislation protects women against any kind of torture, cruelty, or physical violence by the husband or his relatives which is liable under Section 498A of the Indian Penal Code and Domestic Violence Act 2005 but the same laws are not adequately formulated when it comes to rape. If the sole act of rape does not require passive consent or submission by the victim to be even considered, then why does a being married give an automatic submission to this sexual abuse?
Such contrasting views against two different groups of women are arbitrary and contrary to the spirit of Articles 14, 15(1), and 21 of the Indian Constitution. Article 14 of the Constitution of India states that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
Despite the fact that the constitution guarantees equality to all citizens, women have fallen prey to their own husbands and become shocking victims of marital rape. Intrusion in ones’ sexual privacy has been considered in the case of the State of Maharashtra and another v. Madhukar Narayan Mardika[6] where the Hon’ble Supreme Court held that “every woman is entitled to her sexual privacy and no person can violate it according to his whims. She is entitled to the protection of the law.”
Justice K.S. Puttaswamy (Retd.) v. Union of India
In the case of Justice K.S. Puttaswamy (Retd.) versus Union of India[7], the Supreme Court acknowledged the right to privacy as a fundamental right of all citizens and held that the right to privacy includes “decisional privacy reflected by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relations.”[8]
Suchita Shrivastava v. Chandigarh Administration
In the case of Suchita Shrivastava v. Chandigarh Administration[9], it was held that “Women’s privacy, dignity and right to abstain from procreating needs to be respected. A woman can refuse to participate in sexual activity and no limitation can be imposed on her exercise of reproductive choice.”
The Protection of Human Rights Act 1993 defines human rights as ‘the rights relating to life, liberty, equality, and dignity of the individual guaranteed by the constitution or embodied in international covenants and enforceable by courts in India.’[10] This implicitly means that if a woman is forced to have sexual intercourse with her husband without her consent, then it would be an infringement of her human rights and a violation of CEDAW (Convention on the Elimination of all Forms of Discrimination against Women), to which India is a signatory. She cannot be treated as a commodity who has no say over her body, nor someone who has no right to deny sexual intercourse to her husband.
In the State of Haryana versus Janak Singh[11], it was contemplated that, “rape is an insult on womanhood and erodes her honor. It dwarfs her personality and reduces confidence level.”
Independent Thought v. Union of India
In the progressive judgment of Independent Thought versus Union of India, it was held that “the intercourse between a man and his wife is a rape if she is below 18 years of age even if she had given her consent.” Therefore, the age mentioned in section 375 of the Indian Penal Code was increased from 15 to 18 years.
On the 23rd of December, 2012, a three-member committee that was led by Justice J.S Verma, former Chief Justice of the Supreme Court, was formulated in order to prescribe amendments to Criminal Law so that perpetrators of sexual violence were given severe punishment and expedite the trial. This committee was constituted due to the outrage caused in the Nirbhaya rape case which occurred on December 16th.
The committee tried to obtain “an exception for the definition of marital rape in the existing laws”. The committee asserted in its report that, “The law ought to specify that marital or other relationship between the perpetrator or victim is not a valid defense against the crimes of rape or sexual violation.” The committee said the “relationship between the accused and the complainant is not relevant to the inquiry into whether the complainant consented to the sexual activity and the fact that the accused and the victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape.”
Why Marital Rape occurs?
Many social and cultural instances and reasons such as family loyalty, fear of the husband, fear of divorce disallow the reporting of marital rape cases. Many women in the rural areas lack financial and family support, there is immense mental pressure from society to be a “good wife” and fulfill all obligations as a woman so that such victims of marital rape can safeguard their children’s future. Any dissent on the woman’s side is unacceptable to society. These women are under the notion that it is a better life as a victim of marital rape than actually living independently in peace. Therefore, these circumstances make a woman vulnerable to fall prey to such crimes easily and make their life hard.
Section 9 of the Hindu Marriage Act talks about how the husband or wife can move the court for restitution of conjugal rights and the court may pass a judgment accordingly. However gender-neutral the facade of this section looks, it comprehensibly violates a woman’s sexual rights. If cohabitation is legally forced upon the wife, it leaves her unprotected and undefended where her husband is given all control over her body and she is left in an impuissant situation. An added reason to marital rape is the lack of sex education and sexual awareness within the country. It is an already established fact that sex is a taboo that cannot be spoken about with others. To amplify the current scenario, teenagers are left to discover their sexuality which leads to wrong actions taken by them that no one is willing to correct as it is a matter of embarrassment and shame in society.
Why is Marital Rape not a crime in India?
- Source: The Quint
In India, it is believed that husbands have irrevocable consent from their wives once they get married. They are under the impression that they can disregard the autonomy of a woman and exploit her and their whim. It is an established fact that marital rape is not a crime in India and most countries recognize any kind of rape as rape. One of the reasons why India is lacking behind is the rigidly patriarchal society that suppresses a woman’s voice and right to express their opinion and also an obsolescent culture where marriage is considered so sacred that nothing wrong is allowed to go between two people. The actions of a husband are considered divine and he’s worshipped like God.
The government of India also presumes that marriage is a private affair and they proceed with protecting men who are criminals that rape their wives. The most obstinate hindrance to pass a law against marital rape is the Union government itself. There have been several instances where writ petitions have been filed challenging section 375 of The Indian Penal Code but in vain. Misogyny is deep-rooted in our Indian culture and the number of misconceptions regarding women has no boundary.
In August 2019, former Chief Justice of India Dipak Misra said that marital rape should not be made a crime in India, The Times of India reported, “because it will create absolute anarchy in families and our country is sustaining itself because of the family platform which upholds family values.”
The fear of marriages falling apart has created a sense of fear among these wives and restrained them from speaking up for themselves, the government also duly believes that if such laws are implemented then it would lead to the shattering of marriages which they cannot afford to maintain. The Indian government believes that if men are instructed how to treat their wives or prevented from any such sexual actions, then it would indicate that our “Indian culture” is following the west.
Such mentality is a result of lack of literacy and the absence of financial empowerment among females that makes them financially dependent on their husbands. There is a need to shape the mindset of the society and to educate the woman on the fact that her personal liberty is of utmost importance and for the welfare of the society.
Can Marital Rape be a valid ground for claiming divorce?
In a case that came up in an appeal in the Kerala High Court, the appellant-husband was a medical doctor at the time of their marriage. However, after the marriage, he shifted to the real estate business and construction, which did not go well. A petition for divorce was filed before the family court on the ground of constant harassment and demand for money by her husband. The Family court had observed that the appellant treated his wife as a money-minting machine and that she had chosen to file for divorce when the harassment and cruelty reached a level beyond toleration. The husband filed an appeal challenging the family court order allowing his wife’s plea for divorce on grounds of marital rape and dismissing a petition for restitution of conjugal rights filed by the appellant.
The division bench rejected the appeal of the husband against divorce and stated that “treating a wife’s body as something that is owed to the husband and committing sexual acts against her will is nothing but marital rape. Right to respect for one’s physical and mental integrity encompasses bodily integrity, any disrespect or violation of bodily integrity is a violation of individual autonomy.” The court also observed that there is a need to update the marriage laws in the country and make them secular so that the law can deal with such cases in a uniform manner.
International Perspective on Marital Rape
In most parts of the world, the idea of marriage is considered an oxymoron due to the very fact that there is permanent consent to have sexual intercourse in marriage. In countries like Vietnam, Guatemala, and South Africa, poor functioning of public health and human rights policies have resulted in sexual violence in marriages. The physical and psychological well-being of women is not something that is taken into consideration in countries like Uganda, Nigeria, Ethiopia, Egypt, Kuwait, Bahrain, and the list goes on.
There are 33 countries in the world that have not criminalized marital rape and this is because their culture restrains them from protecting a woman. The concept of permanent, irrevocable consent perfused cultural and legal notions of marriage and forced sex within it. The notion of the free right to sex if one is married is a global mindset of men and if it was not criminalized, it would probably be even more prevalent than it is today.
Up until 1993, the U.S.A incorporated “spousal exemption” which particularly excluded husbands from being criminalized for rape. However, this law was eliminated and forced sex in marriage is illegal today in the U.S.A. Despite this effort, a survey shows that American men consider the rape of a wife a trivial issue than an assault of a stranger or acquaintance. Due to this tapered mindset, marital rape is not prosecuted. There has been variability in cultures towards the issue of rape by a husband and whether is a violation of the human rights of a woman. In today’s time, many International Human Rights organizations are acknowledging sexual abuse in a marriage as a violation of rights.
In Canada and U.S.A, sexual violence in a marriage can be used as reasoning for seeking asylum. Whether it’s Iraq or Malaysia, women today, are standing up for their rights and revolting against the “marry your rapist” laws after similar countries disregarded statutes that violated women’s rights. More than 50 countries have scrutinized marital rape whereas, in Asia, reformers and NGO workers are making legal efforts to take notice of marital rape as an offense.
Conclusion
India is among the 33 countries in the world where marital rape is not criminalized. The legislation has turned a blind eye to marital rape, by calling it an extremely private matter between two individuals where there should be no interference by the government or the judiciary. In the 21st century, there is a very urgent need to amend these outdated laws if the country wants to progress culturally, socially, and economically. Married or not married- the rights of the women need to be safeguarded for a better future and create a safe, harmless environment for women.
The result of the National Health and Family Health Survey 2015-16 shows that “13% of married women have been pushed, shaken and have had things thrown at them. Around 11% of women said that their husbands have twisted their arms or pulled their hair. Another 8-9% said that they have been punched with fists or objects that could hurt them or they have been kicked, dragged, and beaten up. More so, 2% said that they have been choked or burnt and around 1% reported that they have been threatened or attacked with guns, knives and other weapons.”[12]
If most of the countries around the world have legalized marital rape as an offense, then Why is India not joining the troop and emerging as a superpower? In order to pave the way for a safer India and to eliminate this hindrance of marital rape in the country, it is important that the Union Government itself takes necessary and vital steps to protect women and discard any kind of actions that is gender-biased. Rape is always going to be rape and Rape is rape and the dereliction to criminalize it means the immoral acceptance of such a crime.
FAQs
How does Section 375 of the Indian Penal Code project a gender bias towards women?
As seen under section 375 of the Indian Penal Code that forced intercourse and non-consensual sex is punishable by law, the same section imposes an exception on a married woman above 18 years of age whose husband can force her to have sex with him even if it’s non-consensual. The legislators believe that a forceful act by the husband is not a crime and this has not been recognized as an offense by policy enforcers.
Can rape be conveniently categorized according to the age of the women?
Marital rape has not been legalized as an offense by the legislation. However, with no protection for women above the age of 18 years who are raped by their own husbands, is not just a violation of privacy but also a violation of the right to equality.
What did the Justice Verma committee observe on cases of rape and marital rape?
The committee tried to obtain “an exception for the definition of marital rape in the existing laws”. The committee asserted in its report that, “The law ought to specify that marital or other relationship between the perpetrator or victim is not a valid defense against the crimes of rape or sexual violation.” The committee said the “relationship between the accused and the complainant is not relevant to the inquiry into whether the complainant consented to the sexual activity and the fact that the accused and the victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape.”
Why is marital rape a commonly occurring offense in India?
Many social and cultural instances and reasons such as family loyalty, fear of the husband, fear of divorce disallow the reporting of marital rape cases. Many women in the rural areas lack financial and family support, there is immense mental pressure from society to be a “good wife”. These women are under the notion that it is a better life as a victim of marital rape than actually living independently in peace. Therefore, these circumstances make a woman vulnerable to fall prey to such crimes easily and make their life hard.
How essential is it for the legislation to take requisite action against marital rape?
Although marital rape has not been legalized as an offense in India, the legislation needs to pay heed to this affair for the welfare of women and the development of the country. Most countries around the world have legalized marital rape as an offense and India continues to remain in the dark on this matter. In order to pave the way for a safer India and to eliminate this hindrance of marital rape in the country, it is important that the Union Government itself takes necessary and vital steps.
Why does the husband consider sexually assaulting his wife a source of validation?
India is a matriarchal society where men have always been giving first preference over women. This mentality hinders the development of men and constricts them from achieving a broader mindset. Therefore, they do not think or contemplate the fact that hurting your own wife is a wrongful act, and to feed their ego, they continue to proceed with wrongful actions.
[1] Mokta, Mamta. 2017. “Empowerment of Women In India: A Critical Analysis.” Indian Journal Of Public Administration 60, no. 3
[2] 3 SCC 39
[3] Justice J. S. Verma. 2013. Report of the Committee on Amendments to Criminal law. India: PRS Legislative Research: 117
[4] Ibid., 114.
[5] The Wire Staff. 2018. “Marriage Doesn’t Imply a Woman Always Consents to Sex, Says Delhi High Court.” The Wire (New Delhi)
[6] 1 SCC 57
[7] 10 SCC 1
[8] Ibid., 28
[9] 9 SCC 1
[10] The Protection of Human Rights Act 1993. S. 2(d). No. 10 Acts of Parliament 1994
[11] 9 SCC 431
[12] India. Ministry of Health and Family Welfare. 2017. National Family Health Survey (NFHS-4). Bombay: International Institute for Population Sciences: 568